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JR - Constitutional Basis. BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers the constitutional status of judicial reviews (JR), here in the context of determining whether JR can be "a proceeding" under Arbitration Act s.7(1) ['Stay'] and thus whether the court can exercise it's discretion to hear it or not:[133] When it comes to the stay of this judicial review proceeding, the starting point of the analysis is that judicial review by the courts is protected by s. 96 of the Constitution Act, 1867. It is a cornerstone of our justice system. And legislative lawmakers cannot remove the court’s ability to conduct judicial review: Ontario Place Protectors v. Ontario, 2025 ONCA 183, at para 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at para. 24. Thus, the fact the JRPA does not include mandatory language excluding arbitration is legally irrelevant given the constitutional status of judicial review, its relationship to the rule of law and the status of superior courts. As Lorne Sossin J.A. explains in Practice and Procedure Before Administrative Tribunals (Toronto: Ontario: Thomson Reuters), § 38:2. Nature, Source and Purpose of Judicial Review:Judicial review refers to the constitutional power, right and responsibility of the superior courts to ensure that state authority is exercised in accordance with the law. It is a vital aspect of the rule of law. As such the ability of courts to judicially review state action is not dependant on a legislature creating such a right. Unlike a right of appeal, which exists only to the extent that a legislature creates it, judicial review exists independent of legislative desire or creation as an inherent power of the superior courts flowing from sections 96 to 101 of the Constitution Act, 1867.
By virtue of the concept of the rule of law, all exercises of public authority must find their source in law. Furthermore, all decision-making powers have legal limits, derived from the enabling legislation, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep these limits. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [134] The JRPA is thus distinct from other statutes in this regard.
[135] However, this recognition does not answer the question before me. As urged in Peace River, the answer depends very much on the legal context, the terms of the arbitration agreement, and the specific facts of the case.
[136] The constitutional right to seek judicial review does not mean “a right to require the court to undertake judicial review” regardless of the nature of the question before it: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 93.
[137] Discretion is inherent in undertaking the task of judicial review. At minimum, the court must determine whether judicial review is appropriate. In deciding that, if the court determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application. The court also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 54; ss. 2(2), (5) of the JRPA.
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